A.S. No. 563 of 1998

24th May, 2018.

Petitioner Counsel: Shri K. JAYAKUMAR (SR), Smt. LEKHA SURESH
Respondent Counsel: Shri BIJU ABRAHAM, Shri B.G. BHASKAR

Cases Cited:
Jose Vs. Ramakrishnan Nair Radhakrishnan and ors, AIR 2004 Kerala 16 [Para 1,2,9,20,21]
Eramma Vs. Veerupana and ors,, AIR 1966 SC 1879 [Para 12,13,14,21]
Bai Vajia (dead) by Lrs. Vs. Thakorbhai Chelabhai and ors, AIR 1979 SC 993 [Para 13,14,21]
V.Tulasamma and Others Vs. Sesha Reddy (Dead) by Lrs., 2011 ALL SCR (O.C.C.) 1=AIR 1977 SC 1944 [Para 13,15]
Kalawatibai Vs. Soiryabai and ors,, AIR 1991 SC 1581 [Para 14,21]
Pachi Krishnamma Vs. Kumaran Krishnan, AIR 1982 Kerala 137 [Para 15]
Velayudhan Vs. Ithayi, AIR 1994 Kerala 267 [Para 20,21]
Chunno Lall and Ors. Vs. Chotay Lall, 6 Indian Appeals 15 [Para 22]

JUDGMENT

P. B. SURESH KUMAR, J. :- This first appeal has come up before the Full Bench on a reference by a Division Bench doubting the correctness of the decision rendered by an earlier Division Bench in Jose v. Ramakrishnan Nair Radhakrishnan and others (AIR 2004 Kerala 16) as to the application of Section 14 of the Hindu Succession Act, 1955 ('the Act' for brevity).

2. Though it is not necessary to go deep into the facts of the case for the purpose of deciding the question referred for decision and the correctness of the decision in Jose (supra), as we propose to decide the appeal by this judgment, the facts of the case need to be stated.

3. The appeal is by the unsuccessful plaintiff in a suit for partition. The plaintiff is the sister of the defendants. The parties belong to Hindu Thiyya community of South Malabar. The suit properties belonged to Perachan, the father of the parties. Perachan obtained the suit properties under a kanom deed of the year 1937. The case of the plaintiff, as set out in the plaint, is that Perachan died prior to the Act; that he was survived by his wife Imbichipennu, his sons, the defendants and his daughters, the plaintiff and Karthiayani; that as the plaintiff and her sister Karthiayani were unmarried, they acquired a limited ownership in the suit properties on the death of their father Perachan; that the said limited ownership became absolute ownership by virtue of Section 14 of the Act; that Karthiayani died unmarried and issueless on 10.9.1972; that Imbichipennu died on 22.8.1985 and that since Karthiayani and Imbichipennu are survived by the plaintiff and defendants, the plaintiff is entitled to 1/3rd share in the suit properties which is in the joint possession of the plaintiff and defendants. It is alleged by the plaintiff that the defendants are not acceding to the requests of the plaintiff for partition and separate possession of her 1/3rd share in the suit properties.

4. The defendants contested the suit contending mainly that they being the male children of Perachan, the suit properties devolved on them exclusively on the death of Perachan in terms of the principles of Hindu Mitakshara law applicable to them and they are in exclusive possession of the same. It was also contended by them that even if it is conceded that their mother Imbichipennu had acquired a limited ownership in the suit properties and the said limited ownership blossomed into an absolute ownership by virtue of Section 14 of the Act, the plaintiff cannot claim any right over the suit properties through Imbichipennu as she had released whatever rights she had over the suit properties in favour of the defendants by a registered instrument.

5. The trial court, among others, found that the plaintiff had at the most only a right to maintenance out of the income from the suit properties and the said right would not blossom into an absolute right by virtue of Section 14 of the Act, to claim partition. As regards the right claimed by the plaintiff through her mother, the trial court found that if at all the mother had acquired any right in the suit properties, the plaintiff cannot claim any right through her mother in the light of Ext. B1 release deed executed by Imbichipennu in favour of the defendants. The suit, in the circumstances, was dismissed. The plaintiff is aggrieved by the decision in the suit.

6. When the parties are Hindu Thiyyas of South Malabar and when no specific custom in derogation to any of the rules of pristine Hindu Mithakshara law has been pleaded or proved, it can be presumed that the parties were governed by the principles of Hindu Mithakshara law, prior to the Act. The plaintiff claims a share in the suit properties on two grounds. The first ground is that being the unmarried daughter of Perachan, she was entitled to maintenance out of the income from the suit properties and the said right to maintenance blossomed into an absolute right under Section 14 of the Act. The second ground is that her mother Imbichipennu, at any rate, had a limited ownership in the suit properties; that the said limited ownership ripened into an absolute ownership under Section 14 of the Act and that since her mother died after the Act, the said right of her mother in the suit properties devolved on her as well, along with the defendants. As noted, the trial court found that if at all the mother of the plaintiff had acquired any right in the suit properties, the plaintiff cannot claim any right on that basis in the light of Ext. B1 release deed. The plaintiff has not challenged the said finding of the trial court. As such, the sustainability of the first ground alone arises for consideration in the appeal.

7. In fact the trial court had also found that the plaintiff and her sister were married during the life time of their father Perachan. But, the fact that they were unmarried at the time of the death of their father Perachan and when the Act came into force later, is not disputed by the defendants before us. As such, we would proceed as if the plaintiff was unmarried at the time of the death of her father. The fact that unmarried daughters were entitled to maintenance out of the income from the properties of their father under the principles of Hindu Mithakshara law, cannot be disputed. It is in this context, the question whether the floating charge of an unmarried daughter towards her claim for maintenance could be said to be a limited interest which would blossom into an absolute right under Section 14 of the Hindu succession Act, 1955, was referred for decision by the Division Bench before which the appeal came up for hearing. The reference order reads thus:

"Whether the floating charge of an unmarried daughter towards her claim for maintenance could be said to be a limited interest which blossomed into an absolute right under Section 14 of the Hindu succession Act, 1955? The question has to be answered in the negative in view of Eramma v. Veerupana and and Others (AIR 1966 SC 1879), Bai Vijia (dead) by Lrs. v. Thakorbhai Chelabhai and Others (AIR 1979 SC 993), Kalawatibai v. Soiryabai and another (AIR 1991 SC 1581) and Pachi Krishnamma v. Kumaran Krishnan (AIR 1982 Kerala 137) even though a contrary view is taken in Jose v. Ramakrishnan Nair Radhakrishnan and others (AIR 2004 Kerala 16).

2. We doubt the correctness of the dictum in Jose v. Ramakrishnan Nair Radhakrishnan and others (AIR 2004 Kerala 16) and refer the case to Full Bench for an authoritative pronouncement on the issue.

The Registry shall place the papers before the Honourable the Chief Justice for appropriate orders as to posting."

8. Heard Sri.K.Jayakumar, the learned Senior Counsel for the appellant/plaintiff and Sri.B.G.Bhaskar, the learned counsel for the respondents/defendants.

9. The learned Senior Counsel for the plaintiff did not make any submission as regards the question referred for decision. Instead, the learned Senior Counsel argued the appeal, arduously contending that a daughter is also entitled to succeed to the estate of her father under principles of Hindu Mithakshara law; that the estate thus acquired by a daughter would be a limited estate and that limited estate would also blossom into an absolute estate by virtue of Section 14 of the Act. The learned Senior Counsel has placed reliance on the decision of this Court in Jose (supra) in support of the said contention.

10. It is seen that the ground urged by the learned Senior Counsel for the plaintiff is not a ground raised in the appeal. The ground raised in the appeal, in essence, is that being the unmarried daughter of Perachan, the plaintiff was entitled to maintenance out of the income from the suit properties and the said right to maintenance blossomed into an absolute right under Section 14 of the Act. Be that as it may, in so far as the matter has been referred to the Full Bench for deciding the question referred to above, and since the said question is raised in the appeal, we shall first proceed to decide the question referred for decision.

11. As the question referred for decision relates to the scope of Section 14 of the Act, for a better understanding of the question, it is necessary to quote Section 14 of the Act:

14. Property of a female Hindu to be her absolute property.

(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.

Explanation.-In this sub-section, "property" includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.

(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.

As discernible from the quoted provision, sub-section (1) of Section 14 confers on Hindu females the right to hold properties acquired and possessed by them as full owners and not as limited owners. The Explanation to sub-section (1) of Section 14 clarifies that the property referred to in sub-section (1) includes both movable and immovable properties acquired by Hindu females by inheritance or devise, or at a partition or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of the Act. Sub-section (2) to Section 14 is in the nature of a proviso to sub-section (1) which clarifies that nothing in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.

12. It is seen that the scope of Section 14 of the Act was first considered by the Apex Court in Eramma v. Veerupana and others (AIR 1966 SC 1879). In the said case, Eramma, the appellant therein, claimed the benefit of Section 14 of the Act in respect of the properties originally held by her deceased husband on the basis of her possession over the same in preference to the successors of the son of her deceased husband through his third wife. It was held by the Apex Court in the said case that the intention of the legislature in bringing into operation a provision in the nature of Section 14 is to extinguish the estate called 'limited estate' or 'widow's estate' in Hindu law and to make a Hindu woman, who under the old law would have been only a limited owner, the full owner of the property with all powers of disposition and to make the estate heritable by her own heirs and not revertible to the heirs of the last male holder. It was also held by the Apex Court in the said case that mere possession of the property alone is not sufficient to attract the operation of Section 14 of the Act and that the property possessed by a female Hindu as contemplated by the Section is clearly a property to which the female Hindu had acquired some kind of interest, whether before or after the commencement of the Act, however restricted the nature of interest may be. It was therefore held in the said case that Section 14 of the Act cannot be interpreted to confer title on a female Hindu over a property where she did not in fact possess any vestige of title. The claim of Eramma for the benefit of Section 14 of the Act was consequently repelled. Paragraph 7 of the judgment in the said case, which is relevant in the context, reads thus:

7. It is true that the appellant was in possession of Eran Gowda's properties but that fact alone is not sufficient to attract the operation of S. 14. The property possessed by a female Hindu, as contemplated in the section is clearly property to which she has acquired some kind of title whether before or after the commencement of the Act. It may be noticed that the Explanation to S. 14 (1) sets out the various modes of acquisition of the property by a female Hindu and indicates that the section applies only to property to which the female Hindu has acquired some kind of title, however restricted the nature of her interest may be. The words "as full owner thereof and not as a limited owner as given in the last portion of sub-section (1) of S.14 clearly suggest that the legislature intended that the limited ownership of the Hindu female should be changed into full ownership. In other words, S. 14 (1) of the Act contemplates that a Hindu female, who, in the absence of this provision, would have been limited owner of the property will now become full owner of the same by virtue of this section. The object of the section is to extinguish the estate called 'limited estate' or 'widow's estate' in Hindu law and to make a Hindu woman, who under the old law would have been only a limited owner a full owner of the property with all powers of disposition and to make the estate heritable by her own heirs and not revertible to the heirs of the last male holder. The Explanation to sub-section (1) of S. 14 defines the word 'property' as including "both movable and immovable property acquired by a female Hindu by inheritance or devise .....". Sub-section (2) of S. 14 also refers to acquisition of property. It is true that the Explanation has not given any exhaustive connotation of the word 'property' but the word 'acquired' used in the Explanation and also in sub-s. (2) of S. 14 clearly indicates that the object of the section is to make a Hindu female a full owner of the property which she has already acquired or which she acquires after the enforcement of the Act. It does not in any way confer a title on the female Hindu where she did not in fact possess any vestige of title. It follows, therefore, that the section cannot be interpreted so as to validate the illegal possession of a female Hindu and it does not confer any title on a mere trespasser. In other words the provisions of S. 14 (1) of the Act cannot be attracted in the case of Hindu female who is in possession of the property of the last male holder on the date of the commencement of the Act when she is only a trespasser without any right to property.

13. The proposition of law laid down in Eramma (supra) was reiterated by the Apex Court in Bai Vajia (dead) by Lrs. v. Thakorbhai Chelabhai and Others (AIR 1979 SC 993), holding that limited ownership in the concerned Hindu female is sine qua non for the applicability of Section 14 of the Act. In fact, earlier in V. Tulasamma and Others v. Sesha Reddy (Dead) by Lrs. (AIR 1977 SC 1944) : [2011 ALL SCR (O.C.C.) 1], the Apex Court had occasion to consider the case of a wife, whose husband died prior to Hindu Women's Rights to Property Act, 1937 and who got an item of property in terms of a compromise in a suit towards her maintenance. The question that arose for consideration in the said case was as to whether the right on the property possessed by the party involved therein in terms of the compromise, would ripen into full ownership under Section 14 of the Act. The Apex Court recognised in Tulasamma [2011 ALL SCR (O.C.C.) 1] (supra) the concept of what is known as the floating charge of a Hindu wife over the properties of her husband, holding that a Hindu woman's right to maintenance is a personal obligation in so far as the husband is concerned and it is his duty to maintain her even if he has no property and that if the husband has property, then the right of the widow to maintenance becomes an equitable charge on the property and any person who succeeds to the property carries with it the legal obligation to maintain the widow. It was held by the Apex Court in the said case that though the widow's right to maintenance is not a right to property, it is a pre-existing right in the property, i.e., it is a jus ad rem not jus in rem and it can be enforced by the widow who can get a charge created for her maintenance on the property, either by an agreement or by obtaining a decree from the civil court. It was also held by the Apex Court in the said case that though the claim for maintenance does not ripen into a full-fledged right to property, nevertheless, it is undoubtedly a right which in certain cases can amount to a right to property where it is charged. In so far as a property was given to the widow involved in the case in lieu of maintenance in terms of a compromise, in recognition of her pre-existing right, it was held that the said right had ripened into an absolute right under Section 14 of the Act. In Bai Vajia (supra), it was argued that the benefit of Section 14 was wrongly conferred to the party involved in Tulasamma [2011 ALL SCR (O.C.C.) 1] (supra) on the basis that the party involved in the said case had only a right to maintenance over the property of her husband and the said right would not blossom into an absolute right. The Apex Court repelled the said contention also in Bai Vajia (supra). The following are the relevant findings of the Apex Court in the said case as contained paragraph 4 of the judgment:

"A plain reading of sub-sec. (1) makes it clear that the concerned Hindu female must have limited ownership in property which limited ownership would get enlarged by the operation of that sub-section. If it was intended to enlarge any sort of a right which could in no sense be described as ownership, the expression "and not as a limited owner" would not have been used at all and becomes redundant, which is against the well-recognised principle of interpretation of statutes that the Legislature does not employ meaningless language.

xxx xxx xxx

It does not in any way confer a title on the female Hindu were she did not in fact possess any vestige of title.

xxx xxx xxx

Limited ownership in the concerned Hindu female is thus a sine qua non for the applicability of sub-sec. (1) of S. 14 of the Act but then this condition was fully satisfied in the case of Tulasamma to whom the property was made over in lieu of maintenance with full rights of enjoyment thereof minus the power of alienation. These are precisely the incidents of limited ownership. In such a case the Hindu female represents the estate completely and the reversioners of her husband have only a spes successionis, i.e., a mere chance of succession, which is not a vested interest and a transfer of which is a nullity. The widow is competent to protect the property from all kinds of trespass and to sue and be sued for all purposes in relation thereto so long as she is alive. Ownership in the fullest sense is a sum-total of all the rights which may possibly flow from title to property, while limited ownership in its very nature must be a bundle of rights constituting in their totality not full ownership but something less. When a widow holds the property for her enjoyment as long as she lives, nobody is entitled to deprive her of it or to deal with the property in any manner to her detriment. The property is for the time being beneficially vested in her and she has the occupation, control and usufruct of it to the exclusion of all others. Such a relationship to property in our opinion falls squarely within the meaning of the expression "limited owner" as used in sub-sec. (1) of Sec. 14 of the Act. In this view of the matter the argument that the said subsection did not apply to Tulasamma's case (AIR 1977 SC 1944) (supra) for the reason that she did not fulfill the condition precedent of being a limited owner is repelled."

14. The scope of Section 14 of the Act came up for consideration again before the Apex Court in Kalawatibai v. Soiryabai and others (AIR 1991 SC 1581). In Kalawatibai (supra), after explaining the concept of limited ownership, the Apex Court reiterated the propositions laid down in Eramma (supra) as also Bai Vajia (supra). The relevant findings and observations made by the Apex Court in the said case as contained in paragraphs 11 and 12 of the judgment read thus :

11. Thus on plain reading of the Section, and its interpretation by this Court in various decisions a female Hindu possessed of the property on the date the Act came into force could become absolute owner only if she was a limited owner....xx....xx....xx...

12. Limited owner commonly means a person with restricted rights as opposed to full owner with absolute rights. In relation to property absolute, complete or full ownership comprises various constituents such as the right to possess, actual or constructive, power to enjoy, that is to determine manner of use extending even to destroying, right to alienate, transfer or dispose of etc. Any restriction or limitation on exercise of these rights may result in limited or qualified ownership. For instance restriction on enjoyment of property or its alienation. Such restriction or limitation may arise by operation of law or by deed or instrument.The limited ownership of female Hindu in Hindu Law arose as a matter of law. A Hindu widow, according to different schools, Banaras, Bengal or Mithila and even in Bombay inherited or succeeded to property whether of male or female as a limited owner and held limited estate only. Nature of such estate was explained by the Privy Council in Janki Ammal v. Narayanaswami, (1916) 43 Ind App 207: (AIR 1916 PC 117) to be "her right is of the nature of a right to property, her powers in that character are limited"....xx....xx....xx....

It is thus evident that Section 14 of the Act applies only when a female Hindu possessed of properties as on the date of the Act is a limited owner of the properties in her possession as conceived by the principles of pristine Hindu law.

15. As noted, in Tulasamma [2011 ALL SCR (O.C.C.) 1] (supra), the Apex Court was dealing with the case of a wife, whose husband died prior to Hindu Women's Rights to Property Act, 1937 and who got an item of property in terms of a compromise in a suit towards her maintenance and the question that arose for consideration was as to whether the right on the property possessed by the party involved in terms of the compromise, would ripen into full ownership under Section 14 of the Act. It was declared by the Apex Court in the said case that the Hindu widow's right to maintenance is not a right to property, but only a right against the property. The relevant finding contained in paragraph 70 of the judgment in the said case reads thus:

70. .....xx.....(1) The Hindu female's right to maintenance is not an empty formality or an illusory claim being conceded as a matter of grace and generosity, but is a tangible right against property which flows from the spiritual relationship between the husband and the wife and is recognised and enjoined by pure Shastric Hindu Law and has been strongly stressed even by the earlier Hindu jurists starting from Yajnavalkya to Manu. Such a right may not be a right to property but it is a right against property and the husband has a personal obligation to maintain his wife and if he or the family has property, the female has the legal right to be maintained therefrom. If a charge is created for the maintenance of a female, the said right becomes a legally enforceable one. At any rate, even without a charge the claim for maintenance is doubtless a pre-existing right so that any transfer declaring of recognising such a right does not confer any new title but merely endorses or confirms the pre-existing rights......xx..... (underline supplied)

The said proposition has been reiterated by this Court also, after referring to Tulasamma [2011 ALL SCR (O.C.C.) 1] (supra), in Pachi Krishnamma v. Kumaran Krishnan (AIR 1982 Kerala 137) in the context of the right to maintenance available to a Hindu widow. Paragraphs 4 and 5 of the judgment in the said case read thus:

4. The only other question for consideration in this Second Appeal is as to whether the 2nd plaintiff is entitled to a share in the joint family properties. The argument of learned counsel for the appellant is that the 2nd plaintiff is entitled to a share on partition, and such share as she gets on partition is her absolute property on account of her preexisting right to maintenance enlarged to an absolute title to property by virtue of Sub-section (1) of Section 14 of the Hindu Succession Act. The right of a Hindu widow is only to be maintained from out of the income of the joint family properties. She will have a charge on the property itself. But that does not mean she has a right to possession of joint family property nor is she a coparcener entitled to claim joint possession along with the other members. Under Sub-section (1) of Section 1'4 of the Hindu Succession Act any property possessed by a female Hindu, whether acquired before or after the commencement of the Act shall be held by her as full owner and not as a limited owner. The 2nd plaintiff had no possession of joint family properties which would entitle her to claim full ownership under Sub-section (1) of Section 14 of the Act.

5. Learned counsel for the appellant relies on the decision of the Supreme Court in Vaddeboyina Tulasamma v. Vaddeboyina Sesha Reddi (dead) by L.Rs. (AIR 19877 SC 1944), in support of the argument that a widow's right to maintenance is a preexisting right to property maturing to a full estate by virtue of the provisions of sub-sec. (1) of S.14 of the Hindu Succession Act. In the case before the Supreme Court, the widow was in possession of property allotted to her in lieu of her maintenance as per the terms of a compromise entered into between the parties at the stage of execution of a decree for maintenance. Even though the compromise provided for only a limited interest in the property in the possession of the widow, the Supreme Court held that sub-sec (2) of S.14 has no application for the reason that the possession of property by the widow as a limited owner is in re-cognition of her pre-existing right to maintenance on the date on which the Hindu Succession Act came into force and it is sub-sec. (1) of S.14 of the Act that would apply conferring an absolute estate to the widow in respect of the property in her possession, especially in view of the explanation to sub-sec. (1) of S.14. In the present case the 2nd plaintiff had no possession of property in lieu of maintenance, and the decision in AIR 1977 SC 1944 has no application to the present case.

From what has been stated above, there is no difficulty in arriving at the conclusion that the floating charge of an unmarried daughter over the properties of her father towards her claim for maintenance under the principles of pristine Hindu Law would not be a limited interest which would blossom into an absolute right under Section 14 of the Act, enabling her to claim partition.

16. Now, we shall deal with the argument advanced by the learned Senior Counsel for the plaintiff. The argument, as noted, is that a daughter is also entitled to succeed to the personal estate of the father under the principles of Hindu Mitakshara law; that the estate thus succeeded by a daughter is a limited estate and that limited estate would also blossom into an absolute estate by virtue of Section 14 of the Act. It is necessary to refer to the early position of Hindu women, as also the changes brought about by the Hindu Women's Right to Property Act, 1937, to deal with the said argument of the learned Senior Counsel.

17. The great Sages of the past had in their texts represented women as absolutely without independent rights. The women namely, daughter, mother, wife, or sister are treated as the members of man's family, though their right to get support was recognised. The concept was that "the father protects a woman in her childhood, the husband during her youth and the son in her old age.

18. As far as a Hindu widow is concerned, she was entitled to inherit her husband's property only if he died separated and not re-united and leaving no male issues. In other words, the Hindu law of inheritance, so far as widows are concerned, was unsatisfactory and unjust and their position under it was deplorable. The Hindu Woman's Right to Property Act was introduced in the circumstances to give better rights to woman in respect of property. The said Act has effected radical changes in the law of inheritance both in respect of self acquired properties and undivided joint family properties of a Hindu male dying intestate. It has conferred on the widow the right of inheritance along with a son, grandson or great grandson. Under sub section (1) of Section 3 of the Hindu Womens Right to Property Act, when a Hindu governed by any school of Hindu law other than Dayabhag school or by customary law dies intestate leaving separate property, his widow shall, subject to sub section (3), be entitled in respect of property in respect of which he dies intestate to the same share as a son. Under sub section (2) to Section 3 of the said Act, when a Hindu governed by any school of Hindu law other than the Dayabhag School or by customary law dies having at the time of his death an interest in a Hindu joint family property, his widow shall, subject to the provisions of sub section (3), have in the property the same interest as he himself had. Sub section (3) of Section 3 of the said Act however clarifies that an interest devolving on a Hindu widow under the provisions of the said Act shall be a limited interest known as Hindu womans estate, provided however that she shall have the same right of claiming partition as a male owner. The limited interest that devolved on a Hindu widow under the Hindu Womans Right to Property Act would certainly blossom into an absolute right by virtue of Section 14 of the Act. But the fact remains that the said statue applies only to Hindu widows and not to other Hindu females.

19. As far as other Hindu females are concerned, the right of inheritance was governed by the principles of pristine Hindu law till the Act came into force. No doubt, under the principles of Hindu Mitakshara law, the self acquired properties and separate properties of a Hindu male devolves on his heirs by succession and not to his coparceners. But, the daughter, the mother and grandmother were recognised as heirs only to one who died without male issues. This aspect has been clarified in the treatise of Hindu Law by Mayne's thus:

Entitled to shares on partition.- What is clear, however, is that notwithstanding the Vedic text, when a partition took place, we find from the earlier writings, that shares were allotted to the wife, mother and grandmother. The daughter, the mother and the grandmother were evidently first recognised as heirs to one who died without male issue. The status of the appointed daughter even from Vedic times was undoubtedly very high. As early as Kautilya's Arthasasthra, in the absence of sons, the daughters born to a man of approved marriage took his estate. The right of the widow, so long as remarriage was permitted and common, was nebulous; but when her remarriage was prohibited, her succession was at once fully admitted. Even the right of a sister would seem to have obtained recognition. (underline supplied)

Further, as regards the order of succession among them, it is seen that the daughters do not inherit until all the widows are dead and gone. This aspect has been clarified in the commentaries of Hindu Law by Mulla (22nd edition) as also in the treatise on Hindu Law by Mayne's (17th edition). The relevant passage contained in commentaries of Hindu Law by Mulla referred to above reads as follows:

(5) Daughter.- (i) Priority among daughters.- Daughters do not inherit until all the widows are dead.....xx.....xx.....xx....

The relevant passage contained in treatise on Hindu Law by Mayne's referred to above reads as follows:

562. Daughter.- The daughter comes next to the widow, taking after her as well as in default of her, except where by some special local or family custom, she is excluded. Of course, daughters inherit only on the death of the last surviving widow.

.....xx.....xx.....

It is therefore clear that under the principles of pristine Hindu law, daughters would not inherit properties of their father if there are male survivors and widows. The argument of the learned Senior Counsel for the plaintiff, in the circumstances, is only to be rejected.

20. Now, we shall deal with the decision of the Division Bench in Jose (supra) the correctness of which is doubted by the Division Bench which rendered the reference order. The parties involved in the said case were also governed by Hindu Mitakshara law. The suit property therein was the self acquired property of one Madan Bhagavathy. He died intestate prior to the Act, leaving behind a son and a daughter. The daughter sold a portion of the suit property to the third defendant therein and he in turn sold a portion thereof to the first defendant. Later, the daughter and son of Madan Bhagavathy together executed a settlement deed in respect of the entire property and the persons who obtained property under the said settlement deed filed a suit for recovery of the property obtained by the first defendant on the basis that the daughter of Madan Bhagavathy had no right in the property and that the document executed by her is void. The first defendant contended that the daughter of Madan Bhagavathy had a limited ownership in the property; that she was in possession of the property; that the said limited ownership ripened into an absolute ownership by virtue of Section 14 of the Act and therefore the sale deed executed by the daughter of Madan Bhagavathi in favour of his predecessor was valid. The question formulated for consideration in the said case, in the circumstances, was whether daughter gets a limited interest in the estate of the father, corresponding to the widow's estate. Paragraph 8 of the judgment therein indicates that the court was proceeding in the said case on the basis that on the death of a Hindu male following Mitakshara law, even when he has male successors, his daughters would also get a limited interest in the estate of the father, corresponding to widow's estate. The said view has been taken by the Division Bench, placing reliance on the decision of this Court in Velayudhan v. Ithayi (AIR 1994 Kerala 267). Then this Court went on to hold that the said limited interest would blossom into an absolute right by virtue of Section 14 of the Act.

21. As held by the Apex Court in Eramma (supra), Bai Vajia (supra) as also Kalawatibai (supra), the benefit of Section 14 of the Act would be available only when the female Hindu holds property over which she has acquired some kind of title, however restricted the nature of the same be, and mere possession of the property is not sufficient to gain the benefit of the said statutory provision. The question therefore was as to whether the daughter of the holder of the property involved in the said case had acquired any right in the property on the death of her father. As found earlier in this judgment, in so far as the parties were governed by Hindu Mitakshara law at the time when succession opened, and in so far as the holder of the property had a male successor namely the son, the daughter had not acquired any right in the property, so as to enable her to execute a conveyance deed in respect of the same. Coming to the decision in Velayudhan (supra), a close reading of the same would indicate that the question whether the daughter would get a limited interest in the estate of the father corresponding to widow's estate under the pristine Hindu law, was never a question that arose for consideration in the said case. Of course, it is observed by this Court in Velayudhan (supra) that it cannot be disputed that under Mitakshara law, a daughter who succeeds as a heir to the property of a male Hindu takes only a limited estate in the property inherited by her and on his death, the property passes not to her, but to the next heir to the male from whom she inherited it. That observation should have been understood as a proposition where the female Hindu inherits a property in the absence of a male successor to the person who died intestate. That does not, at any rate, apply to a case where a male Hindu was succeeded by his son. If the daughter had not acquired any right in the property of the father, as held by the Apex Court consistently in all the cases referred to above, merely for the reason that the daughter was in possession of the property, she cannot claim the benefit of Section 14 of the Act. The propositions laid down by this court in Jose (supra), in the circumstances, cannot be accepted as correct.

22. It is seen, however, that there was difference of opinion between the different schools of Hindu Law as to the nature of the right that would be inherited by a daughter. The Courts in Bengal and Madras have consistently decided in a series of decisions that the daughter takes only a qualified estate, though the courts of Bombay have taken the view in some cases that the daughter inherits the property absolutely [See Chunno Lall and Ors. Vs. Chotay Lall (6 Indian Appeals 15)]. As such, it is necessary to clarify that in a case where the daughter succeeds to the estate of the father in the absence of male survivors under the principles of pristine Hindu law, the estate would be a qualified one and the same would certainly ripen into an absolute one by virtue of Section 14 of the Act.

23. Coming back to the case on hand, the plaintiff being the daughter of Perachan was not covered by the Hindu Women's Rights to Property Act. As she was unmarried at the time when the succession opened, she had only a right to claim maintenance out of the income from the properties till her marriage. When the plaintiff has not acquired any right in the property, as explained in the various decisions of the Apex Court referred to earlier, the application of Section 14 of the Act does not arise in her case.

For the reasons stated above, we answer the question referred for decision in the negative and dismiss the appeal.

Appeal dismissed.